Hwo v Dwyer (No. 2)
[2014] QCAT 705
•20 May 2014
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
| CITATION: | HWO v Dwyer (No. 2) [2014] QCAT 705 |
| PARTIES: | HWO (Applicant) |
| V | |
| Darryl Dwyer (First Respondent) | |
| Scott Paul Clarke (Second Respondent) |
| APPLICATION NUMBER: | NDR160-13 (Brisbane) |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 20 May 2014 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Scott Paul Clarke, the registered proprietor of the lot at 94 Orchid Drive, Mount Cotton will arrange the following treatment of the Climbing Philodendron vine: pouring boiling water over the vine at sufficient intervals to contain the growth of the vine so that it does not breach and bridge the termite management system for the lot at 3 Flindersia Drive, Mount Cotton; 2. All works are to be at the cost of Scott Paul Clarke; 3. All works are to commence within 30 days of this order; and 4. Darryl Dwyer pays to HWO her costs of the Application fixed at $685.00 within 30 days of this Order. |
| CATCHWORDS: | TREE DISPUTE – whether serious injury or damage or likely to cause serious injury or damage – where trees removed since application – where vine removed since application – where no evidence of serious injury or damage – where no evidence of likelihood to cause serious injury or damage – where vine substantially interfered and is likely to substantially interfere – where duty to mitigate – where proposed herbicide treatment presented risk to health of applicant - where primary consideration is safety of a person – where non-chemical treatment appropriate to treat vine – whether original tree-keeper should pay costs of assessor report and filing fee – where original tree-keeper failed to engage with neighbour or process – whether unnecessary disadvantage Neighbourhood Disputes (Dividing Fences and Trees) Act2011, sections 41, 42, 65, 66, 71, 72, 73, 74, 75 Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Urguhart v. Partington [2013] QCAT 133 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
What is this Application about?
Ms HWO has concerns about her neighbour’s palm trees and vines. On 16 July 2013, she applied to the Tribunal to remove them.
Both the trees and vine have since been removed. The independent Tree Assessor appointed by the Tribunal recommended implementing a herbicide application to kill future regrowth of the vine (Climbing Philodendron) until no further regrowth occurs.[1]
[1] Tree Assessment Report of Jeremy Young dated 14 October 2013 at paragraph 4.
Despite the trees and vine being removed and the Tree Assessor recommending maintenance of the vine to kill future regrowth, HWO is dissatisfied because:
The proposed agreement does not address the issue that I have no legal access for inspection of my external brickwall (sic) – required on a regular basis to determine risk or damage, and termite detection and management…
The Tree Assessor has confirmed roots (from vines) on the brickwork, which have entered the building weep holes, and evidence of termite…
The proposed agreement does not address my health and safety issues detailed in my application, in relation to special precautions and risk assessment involving any use of herbicide / pesticide chemicals; to prevent serious harm to my health due to my severe medical conditions.
The proposed agreement does not address the necessity of allowing “a clear visible inspection line 60cm away” from the brickwall (sic) of my home, as specified in the Tree Assessor’s Report.
Mr Darryl Dwyer was the registered proprietor of the neighbouring property, 94 Orchid Drive, Mount Cotton at the time HWO filed her application. It would appear that Mr Scott Clarke has purchased the property from Mr Dwyer and is the current registered proprietor. Mr Dwyer was therefore the “tree keeper” at the time HWO filed her application, while Mr Clarke is the current “tree keeper” as defined in the Neighbourhood Disputes Resolution Act 2011 (the Act).
Does the Tribunal have jurisdiction?
Having considered section 42 of the Act, the Tribunal is satisfied that chapter 3 applies to the trees.
The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. Here, those requirements are met and the Tribunal finds that it has the power to make an order under section 66 of the Act.
As a precondition to the Tribunal’s jurisdiction, HWO has discussed the issues with both Mr Dwyer and Mr Clarke.
What does the Tribunal consider?
Section 73 of the Act requires the Tribunal to consider various matters.
Because the likelihood of serious damage is alleged, the Tribunal may also consider section 74 of the Act.
Because unreasonable interference is alleged, the Tribunal may also consider section 75 of the Act.
Are the trees or vine likely to cause within the next 12 months serious damage to HWO’s land or property on her land?
Trees
The palm trees have been removed. They are therefore not likely to cause within the next 12 months serious damage to HWO’s land or property on her land.
On 19 November 2013 HWO wrote to the Tribunal stating:
Due to very high workloads Building Inspection Companies I have contacted are unavailable till the New Year; therefore it has not yet been possible assessment to determine if remedial works are required and associated costs involved.
Since then, HWO has not submitted any evidence of serious damage caused by the trees. There is therefore no evidence that the trees have caused serious damage to HWO’s land or property.
The remaining trees are succulents, shrubs and a small clumping palm. There is no evidence that these are likely to cause serious damage to HWO’s land or property.
Vine
The vine has been removed. However, it is regrowing. The independent Tree Assessor notes:
Vine growing on the wall allows bridging and breaching the termite management system for the property. It also makes inspection of the area as part of an annual termite management plan impossible.
There is staining on the centre of the wall where the vine has been removed. There is also significant root structure left clinging to the wall including into the building weep holes. From my inspection I do not believe this is a structural issue however it would be prudent to get a building inspection to see if any remedial works are required.[2]
[2] Tree Assessment Report of Jeremy Young dated 14 October 2013 at paragraph 2.2.
HWO submitted a Structural Inspection Report that noted the condition of the brickwork as good to fair and no sign of termite damage.[3] This is not sufficient to constitute serious damage.
[3] Report of Jeffrey Hills & Associates Pty Ltd dated 26 February 2014.
The potential for the vine to allow bridging and breaching of the termite management system for the property is also not sufficient evidence that the vine is likely to cause serious damage to HWO’s property within the next 12 months.
This is because there is no evidence of the extent to which the vine’s breach of the termite management system could damage HWO’s property. The vine’s compromise of the termite management system does not of itself mean that HWO’s house is likely to be seriously damaged within the next 12 months. The reports do not state that this is likely to lead to actual termite damage. Indeed, the vine appears to have already breached the termite management system but with no sign of termite damage.[4]This is not consistent with a likelihood of serious damage.
[4] Report of Jeffrey Hills & Associates Pty Ltd dated 26 February 2014.
That the vine “allows bridging and breaching” is therefore not sufficient to establish a causal link for likely termite damage.
I am therefore not satisfied that an order is necessary to prevent the vine from causing serious damage to HWO’s land or property.
Are the trees or vine causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with HWO’s use and enjoyment of her land?
Trees
The palm trees have been removed. They are therefore not causing or likely to cause substantial, ongoing and unreasonable interference with HWO’s use and enjoyment of her land.
The remaining trees are succulents, shrubs and a small clumping palm. There is no evidence that these are causing or likely to cause within the next 12 months substantial, ongoing and unreasonable interference with HWO’s use and enjoyment of her land.
Vine
HWO cannot access that part of the wall of her home upon which the vine grows because it forms part of the common boundary with the adjoining property. By bridging and breaching HWO’s termite management system, the vine thereby compromises the integrity of that system by making HWO’s home more vulnerable to termites.
I am therefore satisfied that the vine causes and is likely to cause within the next 12 months substantial, ongoing and unreasonable interference with HWO’s use and enjoyment of her land.
What are the appropriate orders?
Orders for the Vine
Because I have found that the vine is likely to cause substantial, ongoing and unreasonable interference with HWO’s use and enjoyment of her land I may make an order to remedy, restrain or prevent the interference.[5]
[5] Neighbourhood Disputes (Dividing Fences and Trees) Act 2001, section 66(2)(b)(ii).
When considering orders that are appropriate, the Tribunal is guided by the requirement that ‘a living tree should not be removed or destroyed unless the issue relating to the tree can not otherwise be satisfactorily resolved’.[6]
[6] Neighbourhood Disputes (Dividing Fences and Trees) Act 2001, section 72.
The Structural Inspection Report recommended cleaning the remains of the vine trails from the right boundary wall.[7]HWO submitted a Quote to water-blast the wall to remove the lead material clinging to the wall for $2,706.00.[8]
[7] Report of Jeffrey Hills & Associates Pty Ltd dated 26 February 2014.
[8] Quote 4363 of Road to Roof Building and Maintenance Pty Ltd dated 26 February
2014.
HWO has a duty to mitigate her loss. The quote equates to a cost of $193 per linear metre. The Quote is to water-blast 14 linear metres of the wall. The vine has been removed. There is no evidence that its remnants cover 14 linear metres. The photograph attached to the Tree Assessor Report shows staining that appears to be no more than two linear metres. I have already found that this staining does not constitute serious damage sufficient to warrant an order.
I am not satisfied this single Quote is a reasonable measure of the costs to remove the remnants of the vine trails from the wall, nor is it necessary to address the likelihood of the vine causing serious damage to HWO’s property.
I therefore do not propose to make any orders based on the Quote.
The Tree Assessor recommended ongoing herbicide “to achieve 100% kill”.[9] However, because HWO suffers from chemical sensitivity[10] and reacts to environmental chemicals[11], it is important to her that toxic chemicals are not used.
[9] Tree Assessment Report of Jeremy Young dated 14 October 2013 at paragraph 2.2.
[10] Report of Dr Barry Ryan dated 2 December 2008.
[11] Report of Dr Gervin Samarawickrama dated 14 November 2004.
Although the medical reports submitted by HWO are at least five years old, the primary consideration is the safety of any person.[12]I will therefore not be ordering any herbicide treatment that could present a risk to HWO’s health.
[12] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 71.
HWO has submitted a Report providing a non-chemical treatment for the vine:
I believe the Phildendron sp. is a ‘hard to kill’ weed and my best suggestion for non-chemical treatment would be to pour boiling water over the plant entirely using a kettle with caution. Repeat the process if / when the plant starts to actively grow again. This will contain the immediate problem and prevent the environmental weed / garden ornamental from spreading and slowly killing the plant in situ.[13]
[13] Report of technigro undated.
Given the risks posed to HWO’s health by chemical treatment, I am satisfied that this is a reasonable method to treat the vine.
A tree-keeper is responsible for the proper care and maintenance of the tree-keeper’s tree.[14]. I am satisfied that because Mr Clarke as the apparent new registered proprietor is the tree-keeper, it is appropriate that he is responsible for the costs of this non-toxic treatment of the vine. This also obviates any need for HWO to access Mr Clarke’s property to treat the vine.
[14] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, section 41.
Costs
HWO also wanted orders for the tree keeper to pay the costs of the arborist report and her filing fees because “the problems are due / caused by the respondent’s property” and because she is an aged pensioner with limited financial means.
Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[15], unless the interests of justice require otherwise.[16]
[15] Queensland Civil and Administrative Tribunal Act 2009, section 100.
[16] Queensland Civil and Administrative Tribunal Act 2009, section 102.
There is therefore a strong indicator against awarding costs:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s.100.[17]
[17] Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010]
QCAT 412 at [29].
In deciding this, I may regard prescribed circumstances.[18]Some of these may be more apposite in a particular case.[19]
[18] Queensland Civil and Administrative Tribunal Act 2009, section 102(3).
[19] Urguhart v. Partington [2013] QCAT 133 at [106].
HWO filed her application on 16 July 2013. Her application focused on the palm trees and vine. Mr Dwyer was the tree-keeper at the time but failed to engage with HWO to address her concerns and failed to engage with the Tribunal process. Mr Dwyer failed to comply with Tribunal Directions.
This approach is to be contrasted with the subsequent tree-keeper Mr Clarke who had “positive communication” with HWO and addressed most of her concerns by removing the palm trees and undertaking to remove vine regrowth.
A similarly reasonable approach by Mr Dwyer would have obviated the need for an Assessor Report, if not the entire Application. By failing to engage with HWO or the Tribunal process, Mr Dwyer unnecessarily disadvantaged HWO.
I am satisfied that it is the interests of justice that Mr Dwyer pay HWO her share of the Assessor’s Report of $400.00[20] plus her Application filing fee of $285.00.
[20] Queensland Civil and Administrative Tribunal Act 2009, section 112 and QCAT
Practice Direction No. 7 of 2013 at paragraphs 7 and 13.
Orders
For these reasons, the Tribunal orders that:
1. Scott Paul Clarke, the registered proprietor of the lot at 94 Orchid Drive, Mount Cotton will arrange the following treatment of the Climbing Philodendron vine: pouring boiling water over the vine at sufficient intervals to contain the growth of the vine so that it does not breach and bridge the termite management system for the lot at 3 Flindersia Drive, Mount Cotton;
2. All works are to be at the cost of Scott Paul Clarke;
3. All works are to commence within 30 days of this order; and
4. Darryl Dwyer pays to HWO her costs of the application fixed at $685.00 within 30 days of this order.
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